Litigation & Arbitration
Aug. 8, 2022
How not to screw up your case in arbitration, part two
The testimony of even the most well-prepared witness may prove useless – or worse, problematic – unless the advocate listens and understands its impact on the case, and then follows up by highlighting the parts that are favorable and limiting the parts that are unfavorable.
In the prior column of this series, we shared the following question and the first part of our answer to it:
Q. How can I not screw up my case in arbitration?
A. Five weak strategies to avoid were identified, with a focus on opening statements: inability to offer a short and sweet theory of one's case; not anticipating the opponent's theory of the case; overstating one's case; deferring the opening statement; and failing to summarize key authorities, facts, and arguments in the closing statement (Christopher David Ruiz Cameron & Kathy Fragnoli, How not to screw up your case in arbitration, part one, L.A. Daily Journal, Jun. 7).
In this column, with thanks to our arbitrator colleagues Bob Bergeson, Juan Carlos Gonzalez, and Professor Jan Stiglitz, we offer five more weak strategies not to follow in arbitration. (The 10 total strategies discussed in our two columns are adapted from a presentation frequently given by Kathy Fragnoli at labor-management conferences; the examples that follow are taken from cases heard by Chris Cameron during his practice as an arbitrator for 28 years.)
Weak strategy #6: Nixing a reasonable settlement offer and gambling on a better return in arbitration. In labor relations, the purpose of the grievance procedure is to enable the parties to reach a mutually acceptable settlement; the purpose of arbitration is to impose a decision when the parties have been unable to settle. Settlements are always better than decisions. There are several reasons for this. Most important, decisions produce winners and losers, and most losers are unhappy about losing. Moreover, decisions mean delays; whereas a settlement can be reached today, a decision will have to wait for tomorrow, which may lie weeks or months in the uncertain future.
An example from our common experience comes to mind. The union had filed what it insisted was a meritorious but long-running contract grievance on behalf of an employee who had been denied $2,000 in overtime. Before the hearing got underway, the employer proposed to settle right then and there by cutting the employee a check for $1,500 - that is, 75 percent of what had been demanded. The affected employee resisted on the ground that she was owed another $500. One of us agreed to mediate, and pointed out to the employee that she might be right, but she would have to wait a minimum of twelve weeks to find out. Once today's hearing ended, it would take two weeks to get the court reporter's transcript, plus four weeks for the parties to write and file briefs, plus two more weeks' delay due to an inevitable request by one side to extend the brief filing deadline, plus another four weeks for the arbitrator to issue the decision. In other words, the affected employee was looking at a delay of at least three months - if she won. What if she lost, and collected $0?
So it was suggested that a bird in the hand today was worth more than two in the bush tomorrow. The affected employee agreed to take the $1,500 and be done with it.
Weak strategy #7: Not preparing corroboration for your key facts. For the party bearing the burden of proof, every element of the claim or defense requires proof of a series of ultimate facts. Unless these facts are proved, usually by a preponderance of the evidence, the party risks losing on the merits.
With respect to the problem of corroboration, two cases are typical: hearsay cases and "he said/she said" cases. In the former type of case, the challenge is to offer multiple independent sources - such as other witnesses having at least some personal knowledge of events or contemporaneously prepared documents memorializing such events - to back up the hearsay and make it seem more reliable. In the latter type of case, the challenge is to offer some way to break the "tie," especially if neither side's uncorroborated hearsay seems more credible than the other's.
A "he said/she said" example comes to mind. (Actually, this is a "he said/he said" example; not every case of this type is about sexual harassment.) A maintenance employee was terminated for insubordination because he refused to follow a supervisor's direct order to switch from timekeeping by paper entry to timekeeping by iPad entry. Until then, employees had been given the option of choosing either timekeeping method. The ultimate fact giving rise to the problem was whether the employee was aware of the order. The employer called the supervisor's boss, who testified, "It is my understanding that the supervisor gave the order in question to everybody who attended a tailgate meeting on December 1. This included the employee, who was in attendance." The supervisor himself was not called to testify. In response, the union called the employee, who testified, "I admit attending the tailgate meeting, but the supervisor never said a word about timekeeping practices, much less that I had to switch to using the iPad only." The witnesses seemed equally credible.
At this point, the employer should have offered another source - either the supervisor himself, or some other employee who had attended the tailgate meeting, or an email from the supervisor confirming the direct order - to back up the boss' hearsay statement. It didn't. Instead, the employer simply represented that all tailgate meetings were audio-recorded, but failed to produce any recording.
Based on the evidence presented so far, a reasonable arbitrator might have set aside the termination on the ground that the employer had failed to corroborate the boss' hearsay statement, and thereby, to carry its burden of proof. But the union made the call even easier by subpoenaing and offering the recording of the December 1 meeting. When the recording was played, it became apparent that the boss was wrong and the employee was right: not a word about timekeeping was uttered at the tailgate meeting. The employer should have identified this corroboration problem long before the arbitration was held. The employee prevailed.
Weak strategy #8: Failing to line up and prepare your potential witnesses. Putting on a case is a group project. The advocate must take responsibility for leading this project by requiring the availability, cooperation, and preparation of all witnesses whom she plans to call. Each witness needs to understand why he is being called and what he is being expected to say - and to get to the point and say it while on the witness stand. Although entertaining, a rambling witness can be quite distracting. These things are equally true in videoconference and in-person arbitrations.
One of our pet peeves is the practice of some advocates to meet with their witnesses for the first time on the morning of the hearing, and then delay the start of the proceedings until they've had a chance to prepare those witnesses in the caucus room. This practice may be more common in labor as opposed to employment arbitration, or other forms of arbitration that are pursued as an alternative to civil litigation. Such practice is annoying at best and ineffective at worst. Fortunately, with the advent of the prehearing conference that has become common in the post-Covid world, the practice of more advocates is to take care of such business in advance of the hearing date.
Weak strategy #9: Failing to listen to testimony and to follow up properly. The testimony of even the most well-prepared witness may prove useless - or worse, problematic - unless the advocate listens and understands its impact on the case, and then follows up by highlighting the parts that are favorable and limiting the parts that are unfavorable. This vigilance is important whether the advocate is conducting direct examination of her own witness or cross-examination of the opponent's witness.
Another example from our common experience comes to mind. The grievant, an expert on firearm safety known as an armorer, was terminated by a sheriff's department after a gun he was handling accidentally discharged and injured a civilian who was taking a firearm safety class taught by the grievant. The grievant and the civilian blamed each other for the accidental discharge. The ultimate fact giving rise to the termination was whether the grievant had complied with a cardinal rule of firearm safety known to every armorer: never point a gun in your possession at anyone or anything you don't intend to destroy. The union's advocate called the grievant to demonstrate how he had been handed the gun by the civilian. The advocate himself played the role of the civilian. A "dummy" firearm was used. During the demonstration, the grievant could be seen taking possession of the dummy firearm by the top of the butt, with his fingers away from the trigger, but with the barrel clearly pointing at the civilian. This damning evidence was never addressed - let alone clarified, explained, or limited - by the union's advocate. (Oddly, it wasn't mentioned by the sheriff's advocate either.) But the arbitrator realized what it meant, and the termination was upheld.
The union's advocate probably missed the damning nature of his own demonstration because he couldn't simultaneously participate and observe himself. In retrospect, he should have run the demonstration by directing some other confederate to play the civilian, or by offering a simulated photo essay or videorecording, so he could see the same thing that the arbitrator saw.
Failure to listen, understand, and follow up by highlighting or limiting key testimony is easy to do. After all, the advocate is trying to multitask by asking questions, taking notes, and shuffling through exhibits at the same time. But help, when available, should be utilized. Such help can include:
Recruiting another advocate or law clerk, or even the client, to take and share notes, and to keep track of and produce relevant exhibits as needed
Asking the court reporter to read back missed testimony, if a court reporter has been retained
Taking breaks to review one's notes and confer with clients and other principals before resuming examination
Requesting an expedited copy of the transcript and recalling witnesses to follow up on problem areas, at least for multi-day hearings
Weak strategy #10: Allowing an opponent (or witness) to get into your head. Misbehaving opponents and obstinate witnesses can be frustrating for new and experienced advocates alike. Dealing with difficult personalities is inevitable. But losing one's focus on the task at hand - persuading the arbitrator of the merits of your case - is not. It is critical to keep your eyes on the big picture, which is winning, and not the little picture, which may be the desire to put the misbehaving opponent or obstinate witness in their place.
Another of our pet peeves is the tendency of frustrated advocates to respond in kind to snide comments and snippy remarks, or worse, kicking and screaming. No arbitrator worth her salt is going to be persuaded by these tactics, no matter who uses them. If ignoring such tactics doesn't work, then consider alternative ways of getting the arbitrator to intervene by raising an appropriate objection (e.g., argumentative or badgering the witness) or moving to strike as non-responsive; requesting either a "cooling off" recess or an early adjournment so the hearing can resume with a fresh start another day; asking for a direct order (e.g., requiring the opponent or witness to cease and desist from the misconduct in question); or moving for an appropriate sanction.